Citation Nr: 21008798 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 08-39 113 DATE: February 18, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities for the period prior to December 13, 2012, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2003 to December 2006. The claim was most recently before the Board in July 2020 when it was remanded for further development. There has not been substantial compliance with the remand directives and another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The Board had remanded the matter to obtain a retrospective opinion in order to clarify the functional impact of the Veteran’s service-connected disabilities on her employability prior to December 13, 2012. In October 2020, a VA physician assistant provided a lengthy recitation of the evidence in the Veteran’s claims folder. However, in addressing the ultimate question of the Veteran’s functional impairments, the examiner stated only that between 2006 and 2012, the Veteran was “capable of light duty and sedentary activity.” This cursory statement fails to provide the Board the information it needs to evaluate the merits of the Veteran’s claim. Remand is needed to obtain a more thoughtful and thorough retrospective opinion. Prior to September 18, 2009, the Veteran did not meet the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16 (a). She was in receipt of a combined 60 percent disability rating during this period. The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). As the record does not show that the Veteran’s claim was ever submitted to the VA’s Director of Compensation Service for extraschedular consideration, remand is also needed for this purpose. The matters are REMANDED for the following action: 1. Forward the Veteran’s claims file to an appropriate examiner to provide a retrospective opinion regarding the impact of the Veteran’s service-connected disabilities on her ability to work for the period prior to December 13, 2012. An in-person examination is only required if deemed necessary by the examiner. Based on a review of the claims file, the examiner must, for the period prior to December 13, 2012, provide a functional assessment of the Veteran’s service-connected disabilities (bilateral pes planus, Crohn’s disease, posttraumatic stress disorder with major depressive disorder, bilateral knee strains, and bilateral Achilles tendinitis) and her ability to work consistent with her education and occupational experience, and without consideration of her age or non-service-connected disabilities. The examiner should take into consideration the contemporaneous medical evidence of record when providing the requested opinion. The VA clinician is requested to provide a thorough rationale for any opinion provided. If the clinician is unable to provide an opinion without resorting to speculation, the clinician should explain why a definitive opinion cannot be provided. 2. After completion of the above, refer the claim of entitlement to TDIU to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.